Opinion
B232071
10-20-2011
ROBIN CUNNINGHAM et al., Plaintiffs and Respondents, v. FOREVER 21, INC. et al., Defendants and Appellants.
Paul Hastings, formerly Paul, Hastings, Janofsky & Walker LLP, Nancy L. Abell, Deborah S. Weiser and Ji Hae Kim for Defendants and Appellants. Law Office of Daniel W. Dunbar and Daniel W. Dunbar; The Buxner Law Firm and Evan D. Buxner for Plaintiffs and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC450972)
APPEAL from an order of the Superior Court of Los Angeles County, John P. Shook, Judge. Reversed with directions.
Paul Hastings, formerly Paul, Hastings, Janofsky & Walker LLP, Nancy L. Abell, Deborah S. Weiser and Ji Hae Kim for Defendants and Appellants.
Law Office of Daniel W. Dunbar and Daniel W. Dunbar; The Buxner Law Firm and Evan D. Buxner for Plaintiffs and Respondents.
I. INTRODUCTION
Defendants, Forever 21, Inc. and Forever 21 Retail, Inc., appeal from the March 14, 2011 order denying their motion to compel arbitration. Defendants contend the trial court erred in ruling the arbitration agreements with the three class plaintiffs, Robin Cunningham, Heather Florez and Eric Corona, were unconscionable. We agree and reverse the order denying defendants' motion to compel arbitration. Upon remittitur issuance, the motion to compel arbitration is to be granted.
II. EVIDENCE
A. Arbitration Agreements
Plaintiffs were employed by defendants at two of their California clothing retail stores. Ms. Cunningham worked for defendants from June to October 2010 as an assistant manager. Ms. Florez worked for defendants from August 2009 to June 2010 as a sales associate. Mr. Corona worked for defendants from January through March or April 2010 as a sales associate.
Upon being hired by defendants, plaintiffs were presented with an arbitration agreement, which all three of them signed. The two-page arbitration agreement provides, "The Company and Employee mutually agree that any dispute or controversy arising out of or in any way related to any 'Dispute' as defined herein shall be resolved exclusively by final and binding arbitration." The arbitration agreement defines "dispute" as follows: "For purposes of this Agreement, the term 'Disputes' means and includes any claim or action arising out of or in any way related to the hire, employment, remuneration, separation or termination of Employee. The potential Disputes which the parties agree to arbitrate, pursuant to this Agreement, include but are not limited to: claims for wages or other compensation due; claims for breach of any employment contract or covenant (express or implied) . . . whether based on common law or statute, regulation, or ordinance." However, both the employer or the employee may apply to a court for provisional remedies, "Pursuant to California Code of Civil Procedure 1281.8 either party hereto may apply to a California court for any provisional remedy, including a temporary restraining order or preliminary injunction."
The arbitration agreement also contains a provision concerning the parties' fees and costs: "In any arbitration held pursuant to this Agreement, the parties shall bear equally all fees and costs of arbitration, including the Arbitrator's fee, except that Employee's share of such fees and costs of arbitration shall not exceed the then-current total filing fee and costs, in any court in which Employee could have filed suit. Each party shall pay for its own attorney's fee and costs, if any. However, if any party prevails on a statutory claim that affords the prevailing party attorneys' fees, or if there is a written agreement providing for attorneys' fees, the Arbitrator may award reasonable fees to the prevailing party." In addition, the arbitration agreement states, "If, in any action to enforce this Agreement, a Court of competent jurisdiction rules that the parties['] agreement to arbitrate under the Model Rules for Arbitration of Employment Disputes of the American Arbitration Association is not enforceable, then the parties agree that such Dispute shall be resolved by final and binding arbitration under the California Arbitration Act, California Code of Civil Procedure Section 1280, et seq." The arbitration agreement also has a severability provision, "The provisions of this Agreement are severable, and if any one or more are determined to be void or otherwise unenforceable, the remaining provisions shall continue to be in full force and effect."
Defendants' arbitration agreement, as signed by all three plaintiffs, concludes: "I AM ENTERING INTO THIS AGREEMENT VOLUNTARILY. [¶] I ACKNOWLEDGE THAT I HAVE CAREFULLY READ THIS AGREEMENT AND UNDERSTAND ITS TERMS, THAT ALL UNDERSTANDINGS AND AGREEMENTS BETWEEN THE COMPANY AND ME RELATING TO THE SUBJECTS COVERED IN THIS AGREEMENT ARE CONTAINED IN IT, AND I AM NOT RELYING ON ANY PROMISE OR REPRESENTATIONS BY THE COMPANY OTHER THAN CONTAINED IN THE AGREEMENT ITSELF. [¶] I FURTHER ACKNOWLEDGE THAT I HAVE BEEN GIVEN THE OPPORTUNITY TO CONSULT WITH MY PRIVATE LEGAL COUNSEL OR OTHER ADVISOR BEFORE SIGNING THIS 2 PAGE AGREEMENT, AND HAVE EITHER DONE SO OR VOLUNTARILY DECIDED TO DELCINE THE OPPORTUNITY TO DO SO."
Defendants' employee handbook states in connection with resolution of disputes via arbitration: "Whenever possible, disputes relating to employment matters will be resolved in an expeditious manner. As you may recall, all employee candidates were requested to sign an Agreement to Arbitrate . . . ; you should have been given an executed copy of this agreement (if not, please contact the Corporate Human Resources department). As such, any/all disagreement or controversy arising out of in any way related to any 'Disputes(s),' as defined below, shall be resolved exclusively by final and binding arbitration."
B. Declarations
1. Defendants' declarations
Defendants presented three declarations. The first declaration identified the arbitration agreements. The second declaration related defendants' unsuccessful efforts to secure plaintiffs' agreement to arbitrate their disputes. The third declaration identified the American Arbitration Association employment arbitration rules.
2. Plaintiffs' declarations
Mr. Corona was hired as a sales associate. He described the manner in which he learned about the arbitration agreement: "Around the time I started working . . . Forever 21 presented me with many pages of documents to sign. [¶] . . . I felt rushed and compelled to sign the documents . . . presented to me. [¶] . . . I felt that I had to sign the documents immediately if I wanted to work. [¶] . . . I was not given any meaningful time to look the documents over in advance of signing or after signing. [¶] . . . I was confused about the documents I was presented with but there was no one present to ask questions. [¶] . . . I was not provided with the opportunity to ask questions before signing the documents presented to me." Mr. Corona denied seeing the agreement to arbitrate or seeing defendants' arbitration policy in the employee handbook. He did not know what arbitration "was" and expressed surprise when he was advised what it involved.
Ms. Florez declared: "Around the time I began working . . . , Forever 21 presented me with many pages of documents to sign. [¶] . . . There was no explanation of what the documents were. I was told to sign the documents where indicated. [¶] . . . I felt rushed and compelled to sign the documents . . . presented to me. [¶] . . . I felt I had to sign the documents immediately if I wanted to work. [¶] . . . I was not given any meaningful time to look the documents over in advance of signing or after signing. [¶] . . . I was not provided with the opportunity to ask questions before signing the documents presented to me. [¶] . . . I was not provided with photocopies of any of the documents that I signed." Ms. Florez denied seeing the agreement to arbitrate or the arbitration procedure in the employment handbook. She had to repeatedly request a copy of the employee handbook before she received it. As in the case of Mr. Corona, Ms. Florez was surprised when she was advised as to what arbitration involves. No declaration was filed by Ms. Cunningham.
III. JUDICIAL PROCEEDINGS
On December 10, 2010, plaintiffs filed a putative class action on behalf of current and former California employees against defendants for: regular and minimum overtime wages owed; meal period and rest period wages; meal and split shift premiums; conversion of wages; unjust enrichment; unfair business practices; and failure to keep accurate records. Plaintiffs alleged various violations of the Business and Professions and Labor Codes. On January 14, 2010, defendants filed their motion to compel arbitration under the Federal Arbitration Act. (9 U.S.C. § 1 et. seq.) Plaintiffs opposed the motion. On March 14, 2011, the trial court held oral argument on the motion to compel arbitration. At the conclusion of the hearing, the trial court denied the motion to compel arbitration. The trial court made no finding as to the procedural unconscionability of the arbitration agreements. The trial court ruled: "I think that this arbitration agreement is a bit one-sided, and I think that - I don't see any great prejudice to the Forever 21 Company being in court or going to arbitration. Both sides have the right to engage in whatever discovery they wish. [¶] I think that basically the arbitration agreement here . . . doesn't provide for all of the types of relief that would otherwise be available in court, to wit, the statutory rights for attorney fees that are mandatory in these types of labor cases. [¶] For that reason the motion of the defendant is respectfully denied." The trial court entered a minute order denying the motion to compel arbitration on the same day. On April 1, 2011, defendants filed a timely notice of appeal.
IV. DISCUSSION
A. Standard of Review
Code of Civil Procedure section 1281 provides, "A written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract." Both state and federal law favor enforcement of valid arbitration agreements. (Wagner Construction Co. v. Pacific Mechanical Corp. (2007) 41 Cal.4th 19, 25 [strong public policy in favor of arbitration]; Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 97.) However, courts will not enforce arbitration provisions that are unconscionable or contrary to public policy. (Id. at p. 114; Abramson v. Juniper Networks, Inc. (2004) 115 Cal.App.4th 638, 651.) The party opposing arbitration bears the burden of proving that an arbitration provision is unenforceable on unconscionability grounds. (Htay Htay Chin v. Advanced Fresh Concepts Franchise Corp. (2011) 194 Cal.App.4th 704, 708; Szetela v. Discover Bank (2002) 97 Cal.App.4th 1094, 1099.)
Unconscionability has both a procedural and a substantive element. Procedural unconscionability focuses on oppression or surprise due to unequal bargaining power. Substantive unconscionability focuses on overly harsh or one-sided results. (Armendariz v. Foundation Health Psychcare Services, Inc., supra, 24 Cal.4th at p. 114; Wherry v. Award, Inc. (2011) 192 Cal.App.4th 1242, 1246.) Employment arbitration addressing statutory rights are subject to certain minimal requirements. Citing its prior decision in Armendariz, our Supreme Court explained: "[W]e held . . . '(1) the arbitration agreement may not limit the damages normally available under the statute (Armendariz, supra, 24 Cal.4th at 103); (2) there must be discovery "sufficient to adequately arbitrate [the] statutory claim" (id. at p. 106); (3) there must be a written arbitration decision and judicial review "'sufficient to ensure the arbitrator comply with the requirements of the statute'" (ibid.); and (4) the employer must "pay all types of costs that are unique to arbitration" (id. at p. 113).'" (Sonic-Calabasas A, Inc. v. Moreno (2011) 51 Cal.4th 659, 677; accord Little v. Auto Stiegler, Inc. (2003) 29 Cal.4th 1064, 1076.)
The trial court's determination of arbitrability is reviewed de novo if there is no disputed extrinsic evidence. The trial court's resolution of disputed facts is reviewed under the substantial evidence test. (Suh v. Superior Court (2010) 181 Cal.App.4th 1504, 1511; Nyulassy v. Lockheed Martin Corp. (2004) 120 Cal.App.4th 1267, 1277.) Whether an arbitration provision is unconscionable is ultimately a question of law. (Parada v. Superior Court (2009) 176 Cal.App.4th 1554, 1567; Sonic-Calabasas A, Inc. v. Moreno, supra, 51 Cal.4th at p. 685, fn. 10; Suh v. Superior Court, supra, 181 Cal.App.4th at p. 1511.) The Court of Appeal has held, "'[W]hen the extrinsic evidence is undisputed, . . . we review the contract de novo to determine unconscionability.'" (Gatton v. T-Mobile USA, Inc. (2007) 152 Cal.App.4th 571, 579; Suh v. Superior Court, supra, 181 Cal.App.4th at p. 1512.)
B. Procedural Unconscionability
Defendants contend that the arbitration agreements were not entered into in a procedurally unconscionable fashion. There is no merit to plaintiffs' arguments that Mr. Corona's and Ms. Florez's brief, vague and conclusory declarations demonstrate the arbitration agreements were offered on a take it or leave it basis. And Mr. Corona's and Ms. Florez's declarations contain no basis for a finding of procedural unconscionability based on surprise. Mr. Corona and Ms. Florez never state they were told directly or inferentially that executing the arbitration agreements was a condition of their employment. No doubt, Mr. Corona and Ms. Florez felt they were rushed. And they claim the arbitration agreements were never explained to them. But the arbitration agreements explicitly state that the potential employee is voluntarily signing the agreement. The arbitration agreements also expressly state that the potential employee has been given the opportunity to consult with an attorney or other adviser and the employee handbook states potential workers are requested to execute the agreements. (Martinez v. Master Protection Corp. (2004) 118 Cal.App.4th 107, 114; Rowland v. PaineWebber, Inc. (1992) 4 Cal.App.4th 279, 286.) As to Ms. Cunningham, she presented no evidence on the procedural unconscionability issue at all. Plaintiffs have not sustained their burden of proving that the arbitration agreements were offered on a take it or leave it basis or there is a basis for a finding of surprise. Thus, there is no evidence that an unfair or oppressive process led to the execution of the agreements by plaintiffs. (Dotson v. Amgen, Inc. (2010) 181 Cal.App.4th 975, 981; Morris v. Redwood Empire Bancorp. (2005) 128 Cal.App.4th 1305, 1318.) Finally, the trial court never found procedural unconscionability factors barred enforcement of the arbitration agreements. The sole ground for the denial of the petition to compel arbitration arises from what we, with respect, believe was a misconstruction by the trial court of the contractual language as we will explain.
C. Trial Court's Prejudice Ruling
Defendants contend the trial court erred by improperly considering whether they would be prejudiced by having the dispute resolved in court or in the arbitral forum when denying their motion to compel arbitration. We agree. Consideration of whether the parties would be prejudiced by nonenforcement of an agreement to arbitrate is not a proper basis for refusing to enforce an arbitration clause. Our Supreme Court has held: "[U]nder both federal and California law, arbitration agreements are valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. In other words, under California law, as under federal law, an arbitration agreement may only be invalidated for the same reasons as other contracts." (Armendariz v. Foundation Health Psychcare Services, supra, 24 Cal.4th at p. 98, fn. omitted; Duffens v. Valenti (2008) 161 Cal.App.4th 434, 443.)
D. The Four Armendariz Factors
Plaintiffs argue the agreement do not provide for compliance with the four Armendariz factors. We disagree. Under Armendariz, the following requirements are implied into every agreement to arbitrate unwaiveable statutory and nonstatutory claims: adequate discovery; a written arbitration award; judicial review; and a prohibition against the employee paying unreasonable costs and arbitrations fees. (Little v. Auto Stiegler, Inc. (2003) 29 Cal.4th 1064, 1076-1081; Armendariz v. Foundation Health Psychcare, Inc., supra, 24 Cal.4th at pp. 103-107.) Thus, they are implied into the employment agreements at issue. Apart from these implied understandings, the arbitration provision requires defendants to pay the fees and costs unique to arbitration. The arbitration agreement provides, "In any arbitration held pursuant to this Agreement, the parties shall bear equally all fees and costs of arbitration, including the Arbitrator's fee, except that Employee's share of such fees and costs of arbitration shall not exceed the then-current total filing fee and costs in any court in which Employee could have filed suit." Defendants are correct that the agreements here do not violate Armendariz in the foregoing respects.
E. The Model Rules
Plaintiffs argue that the arbitration agreements do not incorporate the Model Rules for Arbitration of Employment Disputes of the American Arbitration Association. We agree. All the arbitration agreements state in this regard is, "If, in any action to enforce this Agreement, a Court of competent jurisdiction rules that the parties['] agreement to arbitrate under the Model Rules for Arbitration of Employment Disputes of the American Arbitration Association is not enforceable, then the parties agree that such Dispute shall be resolved by final and binding arbitration under the California Arbitration Act, California Code of Civil Procedure Section 1280, et seq." As can be noted, there is no explicit adoption of the Model Rules for Arbitration of Employment Disputes of the American Arbitration Association in the foregoing language. In any event, as not above, the four Armendariz factors are impliedly and in part expressly provided for in the arbitration agreement.
F. Compliance With California Law
Plaintiffs argue the arbitration agreements are unconscionable because they do not require the arbitrator to adhere to California law. Nothing in Armendariz or its progeny requires the agreement to arbitrate also contain an explicit clause that the arbitrator must follow the law. Arbitrators, even in employment cases, have discretion in the application of law. (See Pearson Dental Supplies, Inc. v. Superior Court (2010) 48 Cal.4th 665, 669, 677; Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 25, 28.) But when an arbitrator commits a clear error of law which denies an employee's unwaiveable statutory rights, the award is subject to judicial review. (Pearson Dental Supplies, Inc. v. Superior Court, supra, 48 Cal.4th at pp. 669, 677; Cotchett, Pitre & McCarthy v. Universal Paragon Corp. (2010) 187 Cal.App.4th 1405, 1417.) Any argument that the absence of language requiring the arbitrator to adhere to the law may result in the denial of plaintiffs' statutory rights is premature. (Pearson Dental Supplies, Inc. v. Superior Court, supra, 48 Cal.4th at pp. 679-680; Armendariz v. Foundation Health Psychcare Services, Inc., supra, 24 Cal.4th at pp. 106-107.) There is no merit to plaintiffs' suggestion that the Armendariz line of cases requires the arbitration agreement expressly state the arbitrator is required to apply the law.
G. Attorney Fees
Plaintiffs contend the attorney fee clause is unconscionable because it deprives them of statutory rights. We disagree. The arbitration agreement satisfies the Armendariz requirement that it not limit statutorily guaranteed remedies such as punitive damages or attorney fees. The arbitration agreement provides: "Each party shall pay for its own attorney's fee and costs, in any. However, if any party prevails on a statutory claim that affords the prevailing party attorneys' fees, or if there is a written agreement providing for attorneys' fees, the Arbitrator may award reasonable fees to the prevailing party." Labor Code section 1194, subdivision (a) states, "Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney's fees, and costs of suit." Plaintiffs' attorney fee rights are nonwaiveable. (Armendariz v. Foundation Health Psychcare Services, Inc., supra, 24 Cal.4th at p. 103; Broughton v. Cigna Healthplans (1999) 21 Cal.4th 1066, 1087.) Plaintiffs argue the foregoing language in the arbitration agreement deprives them of their statutory Labor Code section 1194, subdivision (a) right to attorney fees.
We respectfully disagree with the trial court's incomplete reading of the arbitration agreement. The trial court failed to use appropriate contract construction principles as the arbitration agreement expressly bars any waiver of nonwaiveable rights. The arbitration agreement explicitly states, "Nothing herein shall be construed to waive any right, that either party is prohibited from waiving under applicable law." An arbitration agreement is read using ordinary state-law principles of contract construction. (First Options of Chicago, Inc. v. Kaplan (1995) 514 U.S. 938, 944; Platt Pacific, Inc. v. Andelson (1993) 6 Cal.4th 307, 313.) Civil Code section 1641 requires the arbitration agreement be taken together so as to give effect to all of its provisions. (Victoria v. Superior Court (1985) 40 Cal.3d 734, 741; Mitri v. Arnel Management Co. (2007) 157 Cal.App.4th 1164, 1170.) Further, Civil Code section 1643 requires that a contract be construed to give it lawful effect. (Pearson Dental Supplies, Inc. v. Superior Court, supra, 48 Cal.4th at p. 682; Roman v. Superior Court (2009) 172 Cal.App.4th 1462, 1473.) Civil Code section 3541 states, "An interpretation which gives effect is preferred to one which makes void." (Pearson Dental Supplies, Inc. v. Superior Court, supra, 48 Cal.4th at p. 682; Roman v. Superior Court, supra, 172 Cal.App.4th at p. 1473.) Applying these principles, we conclude the arbitrator is barred from construing any portion of the agreement to deny plaintiffs their statutory Labor Code section 1194, subdivision (a) attorney fee rights.
Further, at best from plaintiffs' perspective, the attorney fee clause is ambiguous. The clause begins by requiring each party to bear their own costs. The first sentence is modified by the aforementioned language limiting the imposition of arbitration costs on plaintiffs. The first sentence is also modified by the remainder of the attorney fee clause which states that fees may be imposed if there is a contractual or statutory right to recoupment of legal fees. The clause does not state that the arbitrator is vested with the power to deny mandatory statutory fees. The attorney fee clause can be read to mean that the first sentence is modified by granting the power to the arbitrator to award statutory legal fees which is in this case a mandatory right. In any event, the qualification that nothing in the arbitration clause may be construed to deny any party any statutory right resolves any ambiguity when the contractual construction principles discussed previously are utilized.
H. Both Sides' Code Of Civil Procedure Section 1281.8 Rights
Plaintiffs contend that the arbitration agreement contains an unconscionable provision that forces them to arbitrate all of their causes of action but allows defendants to pursue a majority of their potential claims in a court. Plaintiffs argue the following provision in the arbitration agreement is one-sided, "Pursuant to California Code of Civil Procedure 1281.8 either party hereto may apply to a California court for any provisional remedy, including a temporary restraining order or preliminary injunction." But the provision itself applies equally to both parties. Either party may seek provisional remedies in court. Moreover, the provision simply restates the parties' statutory right to seek provisional remedies under Code of Civil Procedure section 1281.8. Had the agreement been silent on this issue, either party would still be able to apply to a state court for provisional remedies under Code of Civil Procedure section 1281.8.
Also, as previously noted, plaintiffs had the burden of proof on the unconscionability issue. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972; Mission Viejo Emergency Medical Associates v. Beta Healthcare Group (2011) 197 Cal.App.4th 1146, 1156.) We review the record for substantial evidence of unconscionability. (Lhotka v. Geographic Expeditions, Inc. (2010) 181 Cal.App.4th 816, 820-821; Ontiveros v. DHL Express (USA), Inc. (2008) 164 Cal.App.4th 494, 502.) Plaintiffs' declarations contain no evidence that injunctive relief would more likely be utilized by defendants. The present case is different from Trivedi v. Curexo Technology Corp. (2010) 189 Cal.App.4th 387, 397. There, the trial court found there was a greater likelihood the right to seek injunctive relief benefited the defendant rather than the plaintiff. No such express finding was entered here nor is there any evidentiary basis for one. As to cases cited in Trivedi, they involved arbitration agreements that compelled arbitration of claims likely to be brought by employees. And according to the Court of Appeal, the agreements in those cases exempted from arbitration the claims likely to be brought by employers. (See Fitz v. NCR Corp. (2004) 118 Cal.App.4th 702, 724-725; Mercuro v. Superior Court (2002) 96 Cal.App.4th 167, 176.) That is not present here.
And even if the reference to both sides' Code of Civil Procedure section 1281.8 rights is substantively unconscionable, as it is a single objectionable provision, it can be stricken. (Little v. Auto Stiegler, Inc., supra, 29 Cal.4th at p. 1075; Bolter v. Superior Court (2001) 87 Cal.App.4th 900, 910-911.) Plaintiffs never asked that it be stricken not have they requested such on appeal. Plaintiffs have thus forfeited their right to seek it now. (Pearson Dental Supplies, Inc. v. Superior Court, supra, 48 Cal.4th at p. 681; Tutti Mangia Italian Grill, Inc. v. American Textile Maintenance Co. (2011) 197 Cal.App.4th 733, 740; Jones v. Jacobson (2011) 195 Cal.App.4th 1, 19, fn. 12; Countrywide Financial Corp. v. Bundy (2010) 187 Cal.App.4th 234, 264.) Given the marginal evidence of procedural unconscionability and the absence of any showing of substantive unconscionability, there was no basis to deny the motion to compel arbitration.
V. DISPOSITION
The order denying the motion to compel arbitration is reversed. Upon remittitur issuance, the motion to compel arbitration is to be granted. Defendants, Forever 21, Inc. and Forever 21 Retail, Inc., shall recover their costs incurred on appeal from plaintiffs, Robin Cunningham, Heather Florez and Eric Corona.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P. J. We concur:
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.